State v. Joshua M.

Petitioner
Joshua M., by counsel Matthew Brummond, appeals the Circuit
Court of Berkeley County's April 20, 2016, order
sentencing him to a determinate term of incarceration of
forty years for his conviction of felony child abuse
resulting in death. The State, by counsel Cheryl K. Saville,
filed a response. Petitioner filed a reply and a supplemental
appendix. On appeal, petitioner argues that the circuit court
erred in denying his request to instruct the jury on child
neglect resulting in death as a lesser-included offense of
child abuse resulting in death.

This
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision
affirming the circuit court's order is appropriate under
Rule 21 of the Rules of Appellate Procedure.

On
April 2, 2014, petitioner was babysitting his
girlfriend's two-year-old child, S.S. At approximately 2
p.m., a neighbor saw petitioner running toward his house
holding the child by the torso. According to the neighbor,
the child was limp. The neighbor called 911, and petitioner
attempted CPR on the child with instructions from a 911
operator. Emergency personnel arrived at approximately 2:16
p.m. and transported the child to the hospital. After
transporting the child to another hospital, she died on April
3, 2014. Following the child's death, law enforcement
interviewed petitioner, who indicated that the child received
her injuries in an accidental fall after jumping on a bed. An
autopsy later determined that the child's cause of death
was blunt head, neck, and trunk trauma, and the death was
ruled a homicide.

In May
of 2015, petitioner was indicted on one count of felony child
abuse resulting in death; one count of gross child neglect
creating substantial risk of serious bodily injury; and one
count of presentation of false information regarding a
child's injuries. According to respondent, the State
initially included the charge of gross child neglect creating
substantial risk of serious bodily injury because it believed
that petitioner may have delayed seeking medical treatment
for the child after she sustained injuries. However, the
State eventually dismissed that count for lack of evidence.

Petitioner's
jury trial commenced in February of 2016. At the close of
evidence, petitioner requested that the jury be instructed on
child neglect resulting in death as a lesser-included offense
of child abuse resulting in death. The circuit court denied
petitioner's request for an instruction on child neglect
resulting in death. Thereafter, petitioner was found guilty
of one count of felony child abuse resulting in death and was
acquitted of the remaining charge. In April of 2016, the
circuit court sentenced petitioner to a determinate term of
forty years of incarceration. It is from the sentencing order
that petitioner appeals.

We have held as follows:

"In reviewing the findings of fact and conclusions of
law of a circuit court . . ., we apply a three-pronged
standard of review. We review the decision . . . under an
abuse of discretion standard; the underlying facts are
reviewed under a clearly erroneous standard; and questions of
law and interpretations of statutes and rules are subject to
a de novo review." Syllabus Point 1, State
v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).

Syl. Pt. 1, in part, State v. Georgius, 225 W.Va.
716, 696 S.E.2d 18 (2010). On appeal, petitioner argues that
the circuit court erred in denying his request to instruct
the jury on child neglect resulting in death as a
lesser-included offense of child abuse resulting in death.
According to petitioner, one cannot engage in abuse of a
child without first neglecting the child by failing to
exercise a minimum degree of care to assure the minor
child's physical safety or health. As such, petitioner
argues that child neglect resulting in death must necessarily
be a lesser-included offense of child abuse resulting in
death. We do not agree.

This
Court has previously stated that "[a]s a general rule,
the refusal to give a requested jury instruction is reviewed
for an abuse of discretion. By contrast, the question of
whether a jury was properly instructed is a question of law,
and the review is de novo." Syl. Pt. 1,
State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257
(1996). Further, we have held that

"[a] trial court's refusal to give a requested
instruction is reversible error only if: (1) the instruction
is a correct statement of the law; (2) it is not
substantially covered in the charge actually given to the
jury; and (3) it concerns an important point in the trial so
that the failure to give it seriously impairs a
defendant's ability to effectively present a given
defense." Syl. Pt. 11, State v. Derr, 192 W.Va.
165, 451 S.E.2d 731 (1994).

Syl. Pt. 3, State v. Brock, 235 W.Va. 394, 774
S.E.2d 60 (2015). Here, it is clear that the circuit court
did not err in denying petitioner's request for an
instruction on child neglect resulting in death as a
lesser-included offense of child abuse resulting in death. In
discussing lesser-included offenses, we have held as follows:

"The test of determining whether a particular offense is
a lesser included offense is that the lesser offense must be
such that it is impossible to commit the greater offense
without first having committed the lesser offense. An offense
is not a lesser included offense if it requires the inclusion
of an element not required in the greater offense."
Syllabus Point 1, State v. Louk, 169 W.Va. 24, 285
S.E.2d 432 (1981).

Syl. Pt. 1, State v. Neider, 170 W.Va. 662, 295
S.E.2d 902 (1982). Based on the plain language of West
Virginia Code §§ 61-8D-2a(a) and 61-8D-4a(a), it is
clear that petitioner was able to commit child abuse
resulting in death without first committing child neglect
resulting in death because child abuse resulting in death
does not require proof of neglect. West Virginia Code §
...

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